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‘Because of sex’ approach to protecting trans people

Many analyses of Bostock decision missed the real history

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(Washington Blade file photo by Michael Key)

“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado

The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.

It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.

Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).

So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.

How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.

The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.

Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.

The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.

It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”

It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.

So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.

Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”

This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.

Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.

People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.

Dana Beyer is a longtime D.C.-based advocate for transgender equality.

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Capital Pride must be transparent about sexual misconduct investigation

More questions than answers after two board members resign

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A scene from last year's WorldPride Parade organized by Capital Pride. (Washington Blade file photo by Michael Key)

We are living through some very difficult times in our country. We have a felon in the White House who has surrounded himself with incompetent sycophants and fascists. A Congress that bows down to him, often based on his threats. Things have gotten so bad that his supporters are beginning to wake up to the fact that he cares not a whit for them. They are demanding he stop hiding his involvement with the convicted sex trafficker, Jeffrey Epstein, and come clean. So, to distract them from this, he began a war in the Middle East in which members of the American military have already lost their lives. He says more lives will be lost. He hopes this war of distraction will have Americans forget his failed domestic policies and the Epstein scandal. 

But at the same time that all of this is happening, I am forced to look around at organizations I support and ask if they are being open and honest in the way we are demanding of the felon in the White House.

Recently, I have received calls about an organization I have the utmost pride in: Capital Pride. The calls are about Capital Pride’s internal investigation of “a claim” made against a former board chair, who resigned and no longer has any role with the organization. There has been no public proof of any wrongdoing. At the time, Capital Pride announced it had retained an “independent firm” to investigate the complaint. Now, more than four months later, a second board member has resigned sharing her letter of resignation with the Blade. 

Taylor Lianne Chandler, a member of the Capital Pride board of directors since 2019 who served as the board’s secretary, submitted a letter of resignation on Feb. 24 that alleges the board has failed to address instances of “sexual misconduct” at Capital Pride. 

“This board has made its priorities clear through its actions: protecting a sexual predator matters more than protecting the people who had the courage to come forward. … I have been targeted, bullied, and made to feel like an outsider for doing what any person of integrity would do – telling the truth,” Chandler wrote in her resignation letter. 

The Blade reported the organization announced, “As we continue to grow our organization, we’re proactively strengthening the policies and procedures that shape our systems, our infrastructure, and the support we provide to our team and partners.” 

Again, it is four months later, and there has been no information from Capital Pride regarding that investigation.

Chandler said a Capital Pride investigation identified one individual implicated in a “pattern” of sexual harassment related behavior over a period of time. She added she was bound by a Non-Disclosure Agreement that applies to all board members and she cannot disclose the name of the person implicated in alleged sexual misconduct or those who came forward to complain about it. She added, “It was one individual, but there was a pattern and a history.” 

Again, reading that letter from Chandler and because of the news being full of the Epstein scandal, it makes me want assurances that no organization representing my community will ever think it can cover up issues like this. Capital Pride leadership must be totally transparent. 

Capital Pride is a wonderful organization with so many incredible people working and volunteering there. They make our community proud. I never want to see a blemish on the organization. So, I am calling on them to be open and transparent about the investigation they themselves announced, and let the community know what they found, in detail. More important even than the entire community knowing, is for their staff and volunteers to know what they found. No one should be bound by an NDA, which leads to people thinking something really bad is going on.

I thought twice, even three times, before writing this column. I don’t want it to be seen as casting aspersions on all of Capital Pride, or anyone who may have worked there, or volunteered there. But again, because of the focus on the Epstein scandal, and my writing about the felon and his Cabinet officials involved in it, my calling for them to come clean and tell us all they know, I feel compelled to say the same to the organization I have supported over the years, which even honored me as a Capital Pride Hero in 2016. I want them to move forward and be a beacon of light for our community for many years to come. The work they do makes a difference for so many. 

I wrote in my memoir that coming to a Pride event helped me to come out, and I am sure it has done the same for so many others in our community. What Capital Pride does is important and it must be as transparent as we demand of any other organization.


Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.

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An undeclared war of distraction by the felon

Will Trump claim a national emergency to undermine midterms?

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President Donald Trump (Washington Blade photo by Michael Key)

The president of the United States in his rambling speech about our attack on Iran, recorded during a campaign trip, said, “The Iranian regime seeks to kill. The lives of courageous American heroes may be lost and we may have casualties — that often happens in war — but we’re doing this not for now. We’re doing this for the future, and it is a noble mission.” 

Well, the United States has not declared war on Iran, only Congress can do that, not the president. As I write this, the felon has yet to make a live speech to the American people about what he is doing, and Americans have already lost their lives. He is weekending as he usually does at Mar-a-Lago. I wonder if he has the balls to head out to the golf course while American lives continue to be at stake.

This operation is clearly the felon’s way of distracting the people of the United States from his failed domestic policies. From rising food prices, rents, and health insurance. From the loss of manufacturing jobs, as reported in November ”manufacturing shed another 6,000 jobs in September, for a total loss of 58,000 since April.” Had he not acted on Iran now every news outlet in the nation would have reported on the Epstein scandal with the release of the depositions, video and transcripts, of former Secretary of State Hillary Clinton and former President Bill Clinton, in front of the Congressional Oversight Committee.

Even more frightening is this may be his way of preparing to claim a national emergency to undermine the midterm elections, which he is clearly on target to lose, now that his Save America Act has been defeated in Congress.  

Americans must ask themselves how long they will put up with this warmonger, racist, sexist, lying, homophobic, SOB, who cares not a whit for them, but only for himself, and his rich colleagues, taking as much grift as they all can, while he is president. 

None of this is to say we shouldn’t put constraints on Iran, work to see they never have a nuclear bomb, and limit their production of missiles. We were working toward the goal of stopping them from having a nuclear bomb when the felon, in his first term, pulled us out of the agreement to move forward on that. Today, he has sidelined the State Department, and his Secretary of State, Marco Rubio, in negotiations, and has relied on his son-in-law, Jared Kushner, and Steve Witkoff.  The attack was commenced while negotiations were underway. At the end of last week it was reported, Oman’s Foreign Minister Badr Al-Busaidi, who mediated the talks in Geneva, said there had been “significant progress in the negotiation.” Al-Busaidi added, “Technical-level talks would continue next week in Vienna, the home of the International Atomic Energy Agency.” The United Nations’ atomic watchdog likely would be critical in any deal. 

So clearly this is all about what the two negotiators, who have sidelined the State Department, Kushner and Witkoff, secretly reported to the felon. My guess is some progress was being made, clearly it was not what the president wanted. So, what ruled was his immediate need for a distraction after the failure of his State of the Union address to make any impact on his sagging poll numbers. 

I have written often of the alternate universe Trump has us living in. I am just waiting for his MAGA cult to react to this. Will they still blindly follow everything he says, or will the Laura Loomers of the world finally say, “screw this, take care of us at home, do what you promised to make our lives better”. The first MAGA to say this was Marjorie Taylor Greene. Then Tucker Carlson added his slam against the felon. His PR flack, Karoline Leavitt, is getting confused by all the lies, recently saying “things are better than they were last year.” Clearly forgetting last year was 2025, and the felon was president for all except for 20 days of it, so is responsible for last year. 

I am an optimist and believe our democracy will survive him, and his fascist cohorts’ blatant attacks. We won a revolution against one king, and survived a civil war, becoming even stronger as a united nation. We helped Europe defeat Hitler. I believe Sen. Mark Kelly (D-Ariz.) when he says the military will reject illegal orders. Orders that ask them to act against their fellow countrymen and women. I believe the American people will come to their senses before it’s too late. They will finally reject the POS in the White House, and the sycophants, and fascists, surrounding him in time to reclaim our nation for all the people. 


Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.

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Finding community through tragedy

Death of my dog opens floodgates of condolences

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(Photo by Liliya/Bigstock)

I recently lost my dog, Argo.

He was a pit bull, big, sweet, endlessly cuddly, and for 15 years he was my constant. The kind of presence you stop consciously noticing until they’re gone and the quiet hits you all at once. Pit bulls have a reputation. Argo never got the memo. He just loved people, completely and without condition, from the moment he met them until his last day.

I wasn’t prepared for what happened next.

My phone filled up. Instagram lit up. Texts came in from people I hadn’t heard from in months, in some cases years. Hugs from neighbors. Messages from colleagues. Condolences from people I’d lost touch with, some through nothing more than the slow drift of busy lives in a busy city, and some honestly through small tiffs and misunderstandings that neither of us ever bothered to resolve.

And sitting with all of that love pouring in, I found myself asking a question I wasn’t expecting: Why has it taken this long?

We do this in D.C. We get caught in our heads, our calendars, our ambitions. We let weeks turn into months. We let a small misunderstanding calcify into distance because nobody wants to be the first one to reach out, nobody wants to seem like they need something. We perform resilience so well that sometimes the people who care about us most don’t know we need them.

And then something breaks open, a loss, a moment of real vulnerability, and suddenly people show up. And you realize the connection was always there. It just needed permission.

Argo gave people permission. Even in dying, he did what he always did when he was alive. He brought people together.

I’ll be honest with you about where I’ve been lately. As I’ve climbed the entrepreneurial ladder, something quietly shifted. People stopped seeing Gerard. They started seeing a title, a resource, someone who could give them something or who owed them something. A character. Not a person. And when most of your day is spent inside other people’s problems and crises, you can start to feel it, a slow creep of cynicism that you don’t even notice until one day you realize you’ve gone numb.

And I’m not alone in that. Look around. We just watched innocent people die while those in power looked us in the face and called it something else. We watched people erupt over a 10-minute halftime performance like it was the greatest threat to our country. Everywhere you look there is something designed to make you angry, or exhausted, or both. Anger and numbness have become survival strategies. I understand it. I’ve lived it.

But here is what Argo reminded me.

The world is not what the loudest voices say it is. The world is what shows up when something real happens. And what showed up for me, after losing my sweet boy, was people. Caring, loving, present people who put down whatever they were doing to reach out to a friend. Some of them I hadn’t spoken to in too long. Some of them I’d had friction with. All of them showed up anyway.

That is the world. That is what it actually is underneath all the noise.

I think we’ve forgotten that. Or maybe we haven’t forgotten it, maybe we’re just so tired and overstimulated and battle-worn that we’ve stopped letting ourselves feel it. Because feeling it requires vulnerability, and vulnerability feels dangerous right now. It’s easier to scroll. It’s easier to stay mad. It’s easier to keep a wall up and call it wisdom.

Argo spent 15 years showing me a different way. He never met a stranger. He never held a grudge. He never saved his love for people who deserved it on paper. He just gave it, freely, every single time. Not a reward. Not a transaction. Just the most natural thing in the world.

Grief burns off everything that isn’t essential and leaves only what matters. What’s left for me is this: the world is full of good people. You may be surrounded by more of them than you know. And if you’ve gone numb, or angry, or so busy surviving that you’ve stopped connecting, I want you to know that the feeling can come back. It came back for me.

Reach out to someone today. Close a distance you’ve let grow. Tell someone they matter. Not because everything is perfect, but because connection is how we survive when it isn’t. Living disconnected, mad and closed off isn’t living at all. It’s a slower kind of dying.

Death came to teach me how to live. I hope this saves you some time.


Gerard Burley, also known as Coach G, is founder and CEO of Sweat DC.

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